States Expand Antitrust Muscle to Keep Pressure on Big Business

Prosecutors combating tech giants and other industry titans are growing their ranks as state attorneys general across the spectrum become more comfortable wielding antitrust law against big business.

California is expanding its nation-leading team, adding eight new antitrust hires this June and intending to bring on more in the following months. It joined the Justice Department and roughly 30 states suing to break up Ticketmaster and Live Nation last week.

States want industry—both local and national—on notice, New Jersey Attorney General Mathew J. Platkin (D) said in an interview. That includes his state’s scrutiny of pharmaceutical giants as well as a hard look that the office is giving to payment processing firms. Platkin’s office is hiring two more attorneys to add to its growing list of antitrust cases, including a suit it’s leading as local counsel against Apple over iPhone pricing and charges, as well as challenges it joined against Amazon and Google.

These are just the latest expansions in a surge of antitrust state attorney general growth over the last two decades, said Gwendolyn J. Lindsay Cooley, the National Association of Attorneys General Antitrust Task Force Chair and a Wisconsin Assistant Attorney General. What started as a small cohort has grown to roughly 270 assistant attorneys general involved in antitrust litigation, with robust expansion in the last five years.

“There is a zeitgeist, rightly or wrongly, that there’s been failures in antitrust enforcement over the years and that is why we have so much concentration in all industries,” Cooley said. “How to solve that is by hiring more bodies.”

“Simply put: antitrust enforcement is about protecting the free market and competition which benefits both consumers and businesses,” California Attorney General Rob Bonta (D) said in a statement. “If you are seeing expansion in states’ enforcement efforts, it is because this issue is so urgent for our economy.”

National Impact

While states have always been active in antitrust disputes, the defense bar has noticed the frequency and intensity of state investigations increasing, said Steven Cernak, a partner at Bona Law in Detroit and chairman-elect of the American Bar Association’s Section of Antitrust Law.

“We were more worried about the Federal Trade Commission, class actions, and then maybe the states,” he said. “Now you’ve got to be more worried about the states, and more worried more often, because they’re not getting involved in just the local matters, they’re getting involved in national matters.”

In big cases, some states may play a key role while dozens of others pile on with claims coordinated by the National Association of Attorneys General.

But that routine is evolving; with larger staffs, more states are getting proactive and bringing accessory state claims into these bigger national fights, Cernak said. That increases the risk and complication for a defendant and adds “another mouth to feed” in a potential settlement.

“Were not afraid to hold anybody accountable and not afraid of big fights,” said Platkin. Hiring more staff will lead to more cases and more claims in the mix, he said.

There’s “incredible interest” across the country and in New Jersey to push back against anticompetitive behavior because residents “feel it in a real way,” Platkin said. Whether it’s tech, healthcare, labor or the airline industry, the state has leveraged litigation to mitigate harms to consumers.

“It’s often the case that if we bring an antitrust claim we can also bring a consumer protection claim and we can file them alongside each other. Sometimes you can even add securities fraud,” he said. “Each one of those brings different restitution and different types of recovery for our residents.”

Bipartisan Momentum

Expanded antitrust activity goes beyond blue states and tech behemoths.

In the last five years Florida has expanded its antitrust team, and Tennessee has quadrupled its antitrust attorneys from one to four as states expand their use of antitrust to protect local economies and sports, Cooley said.

Florida Attorney General Ashley Moody (R) leaned into antitrust theory to go after the doomed JetBlue Airways Corp. and Spirit Airlines merger, forcing a side settlement last spring. She also launched an unprecedented antitrust probe into the College Football Playoff Committee after undefeated Florida State University was snubbed from the four-team playoff last season.

Tennessee has been one of the states pushing for expanded antitrust power, and it’s a driver behind litigating other college sports controversies, including the National Collegiate Athletic Association’s rules restricting competition of athletes who transfer schools.

More attorneys gives states get the flexibility to take on big tech and make local cases that might not have been doable otherwise, Cooley said.

The hiring trend is likely to continue even if political winds shift in Washington after the 2024 presidential election, said Randy Stutz, president of American Antitrust Institute.

“States can and have played a historically critical role: when federal enforcement has wavered state and private enforcement can fill the void,” he said. “The states have been swept up in the nationwide momentum about the importance of antitrust enforcement and how essential it is to our democratic system.”